Brooks Hamilton is founder of Brooks Hamilton & Partners, which designs 401(k) plans for corporate clients such as Neiman Marcus and Frito-Lay. In this interview, Hamilton discusses his long career in the benefits industry, the explosive growth of 401(k) plans and the mutual fund industry in the 1980s and '90s, his discovery of a "yield disparity" in 401(k) plans and how this disparity threatens to undermine the entire 401(k) retirement system. This is an edited transcript of an interview conducted on Feb. 23, 2006.

I've been in benefits since Ike was president, Eisenhower, early 1950s. ... I was there 20 years before ERISA [Employee Retirement Income Security Act].

What was the ERISA law?

... [M]ost people feel it's the Magna Carta of the employee benefit industry. It legitimatized the employee benefit industry. ... What ERISA did was to federalize trust law. ... ERISA just energized, at the federal level, the whole concept of employee benefits. ...

How can you relate yourself to the ERISA law? ... What were you doing?

I was a consultant, and I would go out and talk to companies, ... because back then there were a lot of companies [that] just didn't have a retirement plan. I would talk to companies about [the] need to set up a retirement plan: "We would like to consult with you on establishing a plan, developing the budget, developing the strategy, our objectives, goals." I'm making sure that it fits into the business model and plan for the company.

They were defined benefit pension plans. ... Generally a pension was set up to be a function of your seniority and your pay. A simple 1 percent of pay for each year of service was an easy way. ... You saw a lot of plans like that. So if a guy went to work for a company [and] was there 30 years, [when] he retired he got 30 percent of pay plus Social Security. That was the paradigm that was in play back then, and practically all ... larger companies that had been around five or 10 years or longer had retirement programs by the '70s. I think that [had] a lot to do with why ERISA came into being, because ... everywhere you turned, you were seeing these plans, [and] Congress decided that they needed to be federalized. ... They didn't want 50 different sets of rules. ...

So ERISA gets going, and this movement continues to expand. Four years later they do a fix to ERISA; they put in 401(k). ... What was the reason for 401(k)?

Historically management has always had a dilemma. They have wanted to give the worker, the blue-collar worker ... a Christmas bonus; at Christmastime, here's another few hundred bucks. Senior management executives didn't want a Christmas bonus; they want a deferred compensation. ... Well, the idea came about for what was called a CODA plan -- cash or deferred arrangement. CODA plans just exploded, because it solved the problem for management.

... What 401(k) originally did was very simple. ... It was a statutory safe harbor for CODA plans, ... and it only applied to company money. ... What happened was a fellow who now takes a great deal of credit for being the father of 401(k), Ted Benna, who had been with the Treasury Department, put in a request for a private letter ruling, and it was a very simple question: If a fellow ... reduces his pay in consideration for the employer making an equivalent contribution to a 401(k) plan, will you deem ... the contribution to have been made by the employer under 401(k)? We all know that it was made by the employee when you cut his pay, but they are basically saying that those dollars are not these dollars; they are different dollars. ... And the Treasury came back under Reagan in 1981 or so and said yes.

What is the impact in the market when this ruling comes out from the Treasury Department and the IRS?

... It electrified the industry. It electrified guys like me. it electrified the professional infrastructure of the benefit industry because it was, "My God, do you realize a worker can now deduct savings for a retirement?" ... And it sparked everything that has happened since. It was the comet that struck the planet and killed defined benefit pension plans.

The old lifetime pension.

The old lifetime pension. Employees didn't appreciate the pension plan. You could ask an employee, "What do you think a pension plan costs?" -- they had no idea. Employees did not give any value to a company saying, "If you will stay with [us for] 30 years, we'll retire you at 30 percent of pay." It was in one ear and out the other. It meant nothing to the employee.

What did it mean to the company?

It meant ... [the company was] able to fund a pension for maybe a third or fourth what it would cost to just wait and pay people, because of the tax deduction and the tax-free growth.

Let me just get it straight: ... Companies could save significant amounts of money by going for a 401(k)-type plan as opposed to the traditional lifetime pension plan?

... Yes, big money. In my experience, the old formal pension plan costs the average company somewhere between 6 and 8 percent of payroll. If you had a $100 million payroll and had a formal pension plan, ... you were paying $6 million or $8 million a year. ... That was the pension industry before 401(k).

And in 401(k)?

401(k) came along and the same company, let's say, put in a k plan, they terminated their pension or froze it or abandoned it or whatever. Put in a 401(k) plan. ... The company's contribution generally was structured to be a match based on whatever the employee put in. They might say, "You put in a dollar, we'll put in 50 cents." Well, suddenly the company had a great deal to gain if not 100 percent of the people joined the 401(k) plan. They probably were only putting in 2 or 3 percent of payroll because not everybody was in the plan. ...

The Department of Labor pointed out that when ERISA went on the books, of all contributions that were being made to plans, the worker put in 11 percent; the company put in 89 percent. That was in 1974. Fast-forward to 2000, and the same source of data, the Department of Labor, the same said that of all contributions being made, workers are putting in 51 percent, companies 49 percent. The contributions have also gone down. We're not putting in 6 and 8 percent of payroll anymore; we're putting in far less, maybe half of that, most of it by the worker. So the companies are putting in 1 or 2 percent of payroll, as a general statement, to a 401(k) plan.

You're saying that the Department of Labor has numbers that [show that] back in 1974, companies were footing the bill for 89 percent, ... and 25 years later they're putting in 49 percent. So companies have saved 40 percent of their costs nationwide?

There has been a cost shifting of 40 percent from contributions made by the employer to contributions made by the employee.

You've got to be talking hundreds of billions --

Oh huge, yeah, yeah.

I mean, am I right? hundreds of billions of dollars?

Yes, that's correct.

Did you go around and say to companies, "Look, you can save a lot of money here by going this way"?

Yes, I did. I don't know that I look back on it with any particular joy or pride, but ... I can remember talking to some CEOs around this country and asking: "Would you go to Wall Street and market an inflation-proof bond? ... Well, you have made an inflation-proof covenant with your workers." When you tell someone that we will retire you at half pay based on your pay in 2010, you have no idea what promise you have made. ...

You're talking about the old plan. So what did you tell them about the 401(k)?

That basically it eliminated all of the problems of making an inflation-proof promise. It was no promise at all. You were promising [that] you put aside a dollar in 1980, we'll put 50 cents with it. ... Now your 1980 dollar might not be worth a penny, but there was no promise that it would be. So we suddenly transferred all risks in the market, all risks of inflation, all risks of management, everything was transferred to the worker. All the risks were put on the worker in 401(k). ...

No long-term promises, no lifetime pensions.

That's right, and everything was transferred to the worker. ... Management liked the new plan. They wanted to get away from the defined benefit pension plan. It was costing an arm and a leg, and they couldn't control it. [If] the market went into the tank, they had to pony up the losses in a defined benefit pension plan. If you had a $100 million fund that lost $10 million, you had to put the $10 million back. ...

Is this going like wildfire through the pension industry?

It was a wildfire, and one of the sparks bounced over and landed in the mutual fund industry. Go back and look at the number of mutual funds in 1980. There might not have been 100, 200. ... There was no industry. ... The 401(k) plans and the mutual fund industry are joined at the hip; they're the same thing.

So they start marketing like crazy.

You bet. The mutual fund industry started marketing. ... The IRA [individual retirement account] was given birth by ERISA in 1974. I know for a fact; I was there. The insurance companies turned their nose up at the IRA. ... The banking industry turned [its] nose up at the IRA. Wall Street didn't. ... They built their infrastructure, they built their mainframes, they built their touch-tone audio response systems so that an architect in Denver could change from equity to bonds with a touch-tone phone. They had everything all ready to go. ... The Wall Street investment brokerage community had a four-, five-, six-year head start. ....

So the banks and the insurance companies were tied into the old traditional lifetime pension, ... and Wall Street and the mutual funds get on the bandwagon with this hot new vehicle, the 401(k).

That's right, and they were able to go out in the early '80s and market ... daily concepts. In other words, you can click your mouse and pull your record up on this new marvelous machine called the personal computer. ...

Daily quotes, stock prices.

Exactly. And mutual funds ... loved it. ... The banks had been asleep at the switch; the insurance industry had been asleep at the switch. They couldn't compete. ...

Where did this take off [first]? ... Was it big companies? Was it medium-sized companies or small companies? Was it North? Was it South? Where did it hit?

I think it did hit in big companies. It trickled down. It hit in big companies who froze their pension plans, and I think the people who stayed with the old paradigm were the unions, were the old industries, the old manufacturing and textile [industries]. ... I hadn't thought of it geographically, but I'm sure if we went back and looked, California was in the forefront, probably, of plans that switched to 401(k) -- the Sun Belt. I think that's probably correct. ...

So you're going to see the Intels and the Microsofts and the National Semiconductor and Perot Systems and hotshot, upcoming, New Economy companies grabbing this thing, is that it?

Yeah, I think that's correct.

When you are talking to people, are you marketing this concept as a replacement for the old plan because you could save a lot of money and get a lot of certainty out of it if you're running a company, or are you saying this is an additional benefit you can give people?

My experience had been a replacement. ... Because [the] Pension Benefit Guaranty Corporation [PBGC] [and] some of the new ERISA laws made terminating a pension plan very unfriendly and potentially very dangerous, ... instead of terminating a pension plan, you simply froze it, ... and no one else would ever become eligible for the plan. ... The worker that had [started] at age 25 was now 35, had a 10-year benefit accrued, but he would never accrue 11 years. ... From that day forward he would be in a 401(k) plan. ...

It had a lot of sex appeal. And it was power to the people, and it empowered the worker. That's the way it was presented, and that's the way it was sold by Wall Street, mutual funds and so forth. And there was a lot of truth to it. That's what it appeared to be. [But] the power was being given too often to a novice who didn't know a stock from a bond.

Was there any risk to management if ... some employee or employees didn't have such a hot result from their 401(k) plan? ... Was there any worry about that?

... There was huge concern. ... Senior management, particularly in Fortune 500, Fortune 1000 companies, they are apprehensive about the market crashing. It happened before. They are afraid of a class action, ... a generation retiring in despair and so forth. So that's a concern. My take on it is that there were some meetings of the ... powerful mutual fund families --

Like Fidelity.

Like Fidelity. This is a legitimate problem, and the way we solve this problem is with new legislation. Maybe we need a statutory safe harbor. ...

So are you saying that mutual funds like Fidelity went to Washington to get legislation to protect the managers of companies from being sued by their employees if the 401(k) investments didn't turn out well?

... That's exactly what they did. In fact, I think they saw it as turning a negative into a positive, because not only would they not be sued; they now had a new mechanism that they could go out and sell to management: "Hey, here is a way to eliminate your ERISA fiduciary responsibility." ... It was a great marketing boost to the mutual funds. In fact, an interesting number is that in 1990, only 5 percent of the 401(k) money was in mutual funds. In the year 2000, it was half.

They went from 5 percent to 50 percent in 10 years?

Ten years, from 1990 to the year 2000, it went from 5 percent to half. It's the greatest market penetration, to my knowledge, ever. Can you imagine starting a business and having 5 percent of the market and 10 years later having half of it? ... I think it's the most brilliant marketing strategy and the most aggressively implemented marketing strategy in the history of capitalism. It is absolutely breathtaking what was done. ... Frankly, it's a chicken-and-egg deal that gave rise to the greatest bull market in history. ...

... So in the mid-1990s, you are working ... as a record keeper, looking at a dozen, 15 large companies. What do you see happening over a period of several years with the 401(k) plans?

I was slow to see it. I should have seen it sooner, but my gut told me that forcing novices ... to direct their own investments was not really a good thing to do. I used to ask the CEO, CFO of my major clients, often in an environment, conference room. Some young employee would bring in coffee and all and as they would be leaving, I would ask the CEO, "Fred let me ask you: Would you allow that employee to direct the investment of your account in the 401(k) plan?" And they always thought I was some kind of idiot. It's kind of like, "Don't they teach you anything down in Texas, Brooks? Of course not. I wouldn't let them touch my account with a 10-foot pole." And I said, "But you force them to manage their own! And they are running their money into the ground. They are novices. They don't know what they are doing. They don't know a stock from a bond. They don't know the Indianapolis 500 from the S&P [Standard & Poor's] 500."

... What enabled you to say to the CEOs [that] those rank-and-file employees can't run their own program?

I'll never forget the situation. [My wife] Judy and I were driving out to Santa Fe, and I was moaning and groaning about some of these things, probably in the 1993, '94, '95 era, and ... she said, "Well, why don't you compute the investment income [in] the record for each person?" And ... we turned the car around and went back to Dallas, because I realized, shazam, that's it! All I've got to do is produce the investment income return at the record level rather than for the trust or for the fund. ...

The first 401(k) plan that I really went in and modified the software to compute the investment income ... for each person in the plan, [I] went into that database and sorted those records [by investment return]. [I] looked at the top and saw, I think it was a 48 percent return, and down-arrowed to the [last] record ... and saw negative 9 percent.

... So you mean that when you looked at the evidence, you found out that the person who did the best was making 48 percent in a quarter and the person who was doing the worst was losing 9 percent a quarter.

Yes, that's correct.

That's big a gap.

It was stunning. I couldn't assimilate it. I didn't know how to think about it. It was far beyond anything I would have ever guessed.

And these are in the same 401(k) plan with the same investment options.

That's correct. ... They were all large plans with $100 million, $200 hundred dollars in the plan and 1,000, 2,000 participants or more. So these were big plans, and they were scattered geographically, some up East and some on the West Coast.

... So you're looking at the top performer and the bottom performer. That's individuals. But could you see a difference by categories?

Yes. ... So we decided to look at the top 20 percent and the bottom 20 percent. ... We saw the same thing over and over. ... Say the bottom 20 percent had an investment return for the year of 4 percent. The top 20 percent would be anywhere between five and seven times that number. ...

Like 30 percent?

Yeah, 30 percent right. ... I label[ed] this yield disparity. I just coined the term. I thought, we have a yield disparity that is a financial cancer in our great, beautiful 401(k) movement. I had never seen it before, but it was everywhere I looked.

What do you mean, a financial cancer?

It would destroy the opportunity for ordinary workers to retire in dignity. They couldn't get there from here. There is no way. Number one, they are contributing too little, too late for the most part. They are contributing the least, and then they are getting lousy investment performance. ...

But were your samples large enough for you to trust them?

Absolutely. I'm looking at 50,000 people in a population of maybe 30 million people in 401(k) plans at that time, ... scattered in every ZIP code in this country, so I knew that what I saw was real, and I found it frightening. ...

... So when you are looking at that concrete evidence of disparity in yield, is there any correlation between [investment income] and the kind of income and education people have?

I don't know about education, because it wasn't a data element in our database, but annual income was. Every client that we did this examination of, in every case, the 20 percent at the top not only had the highest investment income -- like 30 percent or whatever -- they also had the highest average annual pay, whereas the bottom 20 percent not only had the lowest investment income, four percent, they had the lowest average annual pay. And ... the people at the top 20 percent often were putting in less money as a percentage of pay ... because there was a limitation imposed by the law on what they could contribute, so it wasn't driven by the fact that they were putting in more. ...

Are you saying you found a correlation between the salary levels of people and their ability to manage their investment? Higher-paid people got better investment results and lower-paid people got worse?

That's exactly what I'm saying. In fact, it was the only correlation; there was no other.

So what you are saying is the best-paid people, the richest people are getting richer and the middle-class workers are falling further behind?

Yes, that's exactly what I'm saying.

Did you talk to any of the ... companies you were working with? Did they sense the same thing, maybe without the numbers?

I wrote a five-page letter to every client. I felt it was a duty. ... I gave them the results, and I told them what I recommended we do to vaccinate, if you will, against this financial cancer. I had one client take my recommendation. They are still a client. ... To my knowledge, none of the other companies took any action whatsoever to counteract any of this. ... In fairness, I don't know that anyone really had a hint that there was this kind of disparity in the plan until I pulled the covers off. ...

Or is there something else going on? Is there just an assumption among corporate leaders that of course the folks who are managers and engineers, who have the highest education standards and ... highest salaries and who have the most experience running their own investments, ... are going to do better than folks who have just completed high school?

I think there was some of that. I think that's fair.

In the years since you have done your work and come to the conclusion that there is this disparity, in talking with other professionals in the field, ... do you find anybody else who says, "I think you're onto something"? Nobody else?

There's probably 15 or 20 people, ... but none of them are really in the benefit business per se. ... I have tried to influence other major record keepers. A while ago we were talking about Fidelity. They're one of the biggest record keepers, probably the biggest record keeper of all. They have this information, and I've challenged them to prove I'm wrong, show me the investment return on a 10,000-man plan and show me there's no disparity.

We have spent a lot of time working on this project trying to find companies that will let us come in and look at their 401(k) program. ... We've tried to get access, and we've found it extremely difficult. ... Why do you think companies don't want to open their books and their doors to us?

The fear of uncertainty. In other words, let's say this is all true, and this all came out as true and was accepted. There would be a Million Man March on Washington of a different kind. There would be reform.

Let me go back and talk simply about your findings then again. ... What does it say to you about the 401(k) system?

I know that it's defective. ... It may be a fairly simple thing to fix, and I've given a lot of thought to, well, how do you fix this problem?

What is the problem?

The problem is that in a 1,000-person plan, probably over 900 people are going to retire ... into poverty and despair and run out of money.

Because?

Three hundred don't even participate in the plan. Probably 500 contribute too little too late. ... And of the 200 that join the plan and contribute materially, ... 150 of those 200 underperform the market.

They don't invest well.

They don't invest well. To me it's a hurdles race, and there are three hurdles to get over. First hurdle: You must join the plan. Second hurdle: You must make material contributions, and I'm talking 10, 12 percent by the employee. You must tithe to yourself, and you've got to start in your 20s. This is serious stuff. And the third hurdle: You've got to make market returns. You don't have to beat the market; that's a fool's game. You have to be the market. ...

You, as an employee, need to be putting aside 10 or 12 percent a year. Is that right?

Yes, that's what I said.

Plus the employer match.

That's right.

So what are you saying has got to be the savings rate of the employee and the employer combined, say, over 30 years, to have a decent retirement?

Fifteen to 18 percent of pay.

Fifteen to 18 percent of pay.

Yeah.

Most plans think they are doing a great job if, combined, the employee and the employer are putting away 9, 10 percent.

Yeah, they are half what they need to be. I think we can fix it, but we have to --

But you are saying a storm is coming?

A perfect legal storm is approaching this country, and it will dwarf tobacco. The plaintiff bar has to be celebrating, because the preponderance of workers are going to retire into despair and run out of money. ... I promise it's going to be someone else's fault; the plaintiff's bar will say it's somebody else's fault. [These retirees] don't know a stock from a bond. They played the game; they were faithful, loyal employees. They are old and gray and broke.

Are you saying the boomer generation is going to have a miserable financial retirement?

The boomers will be the first, I think, to really be bitten. ... The executive vice president of a major mutual fund family has told me that the average boomer makes $50,000 a year, and the average boomer has $100,000 --

-- in their 401(k).

Yeah ... so the average boomer has two times pay.

And what do they need?

Probably forgetting Social Security, ... the average worker probably needs 10 times pay.

Plus Social Security. ... So if you're making $50,000 a year, you should have --

Five hundred thousand dollars set aside.

What does it mean if instead of having 10 times annual salary saved up in your nest egg, you've only got two times or three times of your salary? What is it going to mean for the boomer generation as they retire to have the kind of retirement balances you're talking about?

... You can only stretch the dollar so far. If they retire on two years' pay, the boomer making $50,000 a year that retires with $100,000, that $100,000 would probably let him have about $700 or $800 a month for life. So instead of retiring on two-thirds pay, which is ... $3,000 a month, ... with their aspirations, their target [to retire on] two-thirds, three-quarters [of] pay, ... their 401(k) is going to run out of money ... in six, seven years, ... and they'll only have Social Security.

Alternatively, they could downsize their expectation for retirement income to Social Security, and maybe 15 percent of pay instead of 30 or 40 or 50 [percent] from the 401(k) plan. Fifteen percent of pay would last their lifetime, but then they would be downsizing their retirement income to maybe 40 or 45 percent [of pre-retirement income], including Social Security.

The problem that they're going to have, that few people talk about, is ... inflation. ... It's a new problem for us today because of the explosion in life expectancy. So if a guy retires at 65 and lives until he's 90, that 40 percent, 45 percent [of their pre-retirement income] is going to be cut in half, and maybe cut in half again, by inflation. ... It's going to melt away. ...

... So what you're saying is we've got a really different kind of retirement financial problem than we thought. We've got long life, we've got huge health bills, and we've got long-term inflation. ... What is it we don't get when we look at our retirement, and why is it such a shock to people when they discover how much they need?

It's human nature to think your problem will be somewhat like your father's, your grandfather's, ... and it wasn't a big deal for them. Looking in the rearview mirror ... is very misleading, because it's not where we're going. It's not what's coming. The fact is the average person is going to retire and maybe live 15 or 20 years, and the risk of post-retirement inflation is huge. It's a problem our father or our grandfather were not concerned about, and so it's a problem we're not concerned about. It's a problem that we must become concerned about, or we're going to run out of money before we run out of living. That's the real risk I see in the industry.

So you see the real problem as a lot of people running out of money except for Social Security?

Yes, I think that's a real risk, and I think that is a risk to our economy. I think that it could even be perceived as a risk to capitalism.

You mean because there won't be that big spending power of all the retirees?

That's right. ... If you retire at 65 and live 20 or 25 years, the retiree population becomes a bigger part of our pie. When it's 20 percent, say, of the population, and it runs out of money, that means they quit consuming. Right now consumers drive this economy. We won't have to worry about greeters at Wal-Mart; there won't be anybody to greet.

That's the nightmare scenario, that if 20 percent of our population retires into despair, poverty, and runs out of money, they will stop consuming. They won't be buying a car next year. They won't be taking a vacation. They won't be doing anything. ... [They'll] become a burden on their children. ... It will change our country. If the economy collapses, the tax base collapses. Budgets collapse, federal budgets. ...

We've got some serious problems, and we need to model it; we need to confront it; we need to deal with it; we need to solve it. And we can. I'm very optimistic that we can solve it, but we're not going to solve it by playing like it's not there. ... We may need to send 200 or 300 or 400 of our best and brightest back to Los Alamos for another Manhattan Project, people with no agendas -- not politicians, not lawyers, not people from the industry -- people who want to save this economy and this country and bequeath freedom and liberty to our children.

Now, there are companies that ... see the low performance, ... and they acknowledge that some of the folks, ... particularly the rank and file, don't have any interest or aptitude at financial planning; they are financial novices. So the answer now that's being put forward is, "OK, we will give you the option of turning it over to Fidelity or one of the other mutual funds." Is that going to work? Will that fix it?

You must save more, earn more, work longer. Those are the three things we control. Fidelity managing my account is not part of that equation, so I don't see that as part of the answer. If Fidelity manages my account, does that mean I save more? Not at all. Does it mean I work longer? Not at all. Does it mean I earn more? Probably not.

Because?

It's fees and expenses, and unfortunately most fees and expenses are not even revealed.

But you may get a better return on your investment with professionals doing it.

... I know John Bogle. ... I have an enormous respect for him. He's a living legend in this industry. ... He testified before the Senate in November of 2003. ... It should be required reading. ... It would do a lot to solve this problem. ... He basically said ... from [1984] to 2002, when the [stock] market did [a] 12 percent [annual] return, the mutual fund industry credited 9 percent. ... The average investor, according to [mutual fund data collector] DALBAR, did 2.7 percent. ...

That's 2.7 percent growth per year.

Per year, yeah. ... So now the solution is to turn it over to them? I thought that's where we had been.

And it hasn't worked too well.

It hasn't worked too well.

Looking back, ... you made a lot of money, and you sort of started to express regret about what you had done back in the '80s. ... What is it that you regret?

I regret the fact that our strategy now, our retirement income strategy in major companies, is the 401(k). Because I think it's -- it may be fatally flawed. I know it's flawed; it's either fixable or it's not, and I won't pass judgment on that. I know that there's a growing number of people who feel it's not fixable, that it cannot be fixed.

And do you regret having been such an ardent advocate of it?

To some extent. I look back and think, how many people are going to be worse off because their pension benefit is gone and they now have a 401(k) plan? ...